This
act shall be known and may be cited as the "Toxic Catastrophe
Prevention Act."

L.
1985, c. 403, s. 1, eff. Jan. 8, 1986.

Title
of Act:

An
Act concerning potentially catastrophic discharges of hazardous
substances into the environment, supplementing Title 13 of the
Revised Statutes, and making an appropriation .

L.
1985, c. 403

13:1K-20.
Legislative findings and declarations

The
Legislature finds and declares that a number and variety of
industrial facilities and related operations generate, store,
handle, and transport extremely hazardous substances; that some
of those operations may represent a catastrophic threat to public
health and safety, especially in a densely populated state;
that, in recent months, the catastrophically tragic event in
Bhopal, India, as well as a score of accidental chemical releases
into the atmosphere of the State demonstrate that modern technology,
operations systems, and safeguards can fail in protecting against
such threats to the public; that while a strengthened capacity
to minimize and abate discharges once they occur and efficient
plans to evacuate populations if those discharges cannot be
contained are vital components of a comprehensive public protection
program, the single most effective effort to be made is toward
prevention of those environmental accidents by anticipating
the circumstances that could result in their occurrence and
taking those precautionary and preemptive actions required.

L.
1985, c. 403, s. 2, eff. Jan. 8, 1986.

13:1K-21.
Definitions

As
used in this act:

a.
"Extraordinarily hazardous accident risk" means a potential
for release of an extraordinarily hazardous substance into the
environment, which could produce a significant likelihood that
persons exposed may suffer acute health effects resulting in
death or permanent disability;

b.
"Commissioner" means the Commissioner of the Department of Environmental
Protection;

c.
"Department" means the Department of Environmental Protection;

d.
"Extraordinarily Hazardous Substance Accident Risk Assessment"
or "EHSARA" means a review and safety evaluation of those operations
in a facility which involve the generation, storage, or handling
of an extraordinarily hazardous substance, as provided in section
6 of this act;

e.
"Extraordinarily Hazardous Substance" means any substance or
chemical compound used, manufactured, stored, or capable of
being produced from on-site components in this State in sufficient
quantities at a single site such that its release into the environment
would produce a significant likelihood that persons exposed
will suffer acute health effects resulting in death or permanent
disability;

f. "Extraordinarily
Hazardous Substance List" means the substances or chemical compounds
identified in subsection a. of section 4 of this act and adopted
by regulation pursuant to subsection c. of that section;

g.
"Extraordinarily Hazardous Substance Risk Reduction Work Plan"
or "work plan" means the document developed by the department
for each facility at which is generated, stored, or handled
an extraordinarily hazardous substance, setting forth the scope
and detail of the EHSARA to which the facility will be submitted,
as provided in section 6 of this act;

h.
"Facility" means a building, equipment, and contiguous area.
Facility shall not include a research and development laboratory,
which means a specially designated area used primarily for research,
development, and testing activity, and not primarily involved
in the production of goods for commercial sale, in which extraordinarily
hazardous substances are used by or under the supervision of
a technically qualified person;

i.
"Risk management program" means the sum total of programs for
the purpose of minimizing extraordinarily hazardous accident
risks, including, but not limited to, requirements for safety
review of design for new and existing equipment, requirements
for standard operating procedures, requirements for preventive
maintenance programs, requirements for operator training and
accident investigation procedures, requirements for risk assessment
for specific pieces of equipment or operating alternatives,
requirements for emergency response planning, and internal or
external audit procedures to ensure programs are being executed
as planned.

b.
Within 60 days of the effective date of this act, the department
shall develop and issue a registration form to be completed
within 120 days of the effective date of this act, by the owner
or operator of each facility in the State which at any time
generates, stores, or handles any of the extraordinarily hazardous
substances on the initial extraordinarily hazardous substance
list, pursuant to subsection a. of this section. The registration
form shall provide, in addition to any other information that
may be required by the department, the following: an inventory
of the extraordinarily hazardous substance or substances generated,
stored, or handled at the facility and the quantity or quantities
thereof, which inventory shall identify whether those substances
are end products, intermediate products, by-products, or waste
products; a general description of the processes and principal
equipment involved in the management of the substance or substances;
a profile of the area in which the facility is situated, including
its proximity to population and water supplies; the extent to
which the risks and hazards of the processes, equipment, and
operations have been identified, evaluated, and abated, and
the expertise and affiliation of the evaluators and any direct
or indirect relationship between the evaluators and the owner
or operator of the facility; and the name or names of all insurance
carriers underwriting the facility's environmental liability
and workers' compensation insurance policies and the scope of
these policies, including any limitations and exclusions.

c.
Within 18 months of the effective date of this act, the Department
of Environmental Protection, in consultation with the Department
of Health, shall develop and, after public hearing, adopt as
a regulation, pursuant to the "Administrative Procedure Act,";
P.L. 1968, c. 410 (C. 52:14B-1 et seq.), an extraordinarily
hazardous substance list. The list shall correlate the substances
or compounds with the quantities thereof required to produce
the potentially catastrophic circumstance. The department shall
have the power to amend, by regulation, the extraordinarily
hazardous substance list to accommodate new chemical compounds
that may be developed or reflect new information or scientific
data that may become available to the department.

d.
Within 90 days of the adoption by the department of an extraordinarily
hazardous substance list pursuant to subsection c. of this section,
the owner or operator of each facility in the State which generates,
stores, or handles any of the extraordinarily hazardous substances
on the extraordinarily hazardous substance list, not registered
pursuant to subsection b. of this section, shall complete the
registration form developed and issued by the department.

L.
1985, c. 403, s. 4, eff. Jan. 8, 1986.

13:1K-23.
Risk management program of registrants

a.
If the owner or operator of a facility that submitted a registration
form pursuant to section 4 of this act has established a risk
management program, the department shall provide for the submission
and review of the risk management program before requiring the
owner or operator to take any other action regarding the facility
and program pursuant to this act. If the department finds the
risk management program has any material deficiencies or omissions
that could reduce the effectiveness of the risk management program,
it shall recommend to the owner or operator risk management
program changes or additions. No later than 60 days after the
recommendation, the owner or operator shall submit to the department
any action the owner or operator proposes in order to correct
the deficiencies or omissions. The owner's or operator's proposals
may be in accordance with the changes and additions recommended
by the department or in accordance with alternative changes,
additions or proposals recommended by the owner or operator.

b. If
the owner or operator and the department agree on the measures
necessary to correct the deficiencies or omissions in the risk
management program, the parties may enter into a consent agreement.

c.
If the parties cannot reach agreement, the commissioner, after
notice and hearing and written findings of fact, may issue an
administrative order requiring changes or additions to correct
the deficiencies. Information available on the cost-effectiveness,
extraordinarily hazardous accident risk reduction effectiveness
and technical feasibility of any changes or additions that the
department or owner or operator recommends shall be considered
by the department and the commissioner in making any decision.
Such an order shall follow administrative hearing procedures,
which are subject to judicial review as necessary. This hearing
procedure shall, to the maximum extent practicable and feasible,
be accorded priority status.

Upon
review of all registrations and accompanying materials submitted
pursuant to this section, the department shall, in cooperation
with the facility owner or operator, develop an Extraordinarily
Hazardous Substance Risk Reduction Work Plan for each registered
facility without a risk management program agreed upon by the
facility owner and the department or subject to a consent agreement
or administrative order entered into pursuant to section 5 of
this act. The work plan shall constitute the basis for any Extraordinarily
Hazardous Substance Accident Risk Assessment required of that
facility, to be performed pursuant to this section. The work
plan shall require the reporting of the identity and quantity
of all extraordinarily hazardous substances generated, stored,
handled, or that could unwittingly be produced in the event
of an equipment breakdown, human error, design defect, or procedural
failure, or the imposition of an external force; the nature,
age, and condition of all the equipment and instruments involved
in the handling and management of the extraordinarily hazardous
substance or substances at the facility, and the schedules for
their testing and maintenance; the measures and precautions
designed to protect against the intrusions of external forces
and events, or to control or contain discharges within the facility;
the circumstances that would have to obtain in order for there
to result a discharge of an extraordinarily hazardous substance,
and the practices, procedures, and equipment designed to forestall
such an event; any alternative processes, procedures, or equipment
which might reduce the risk of a release of an extraordinarily
hazardous substance while yielding the same or commensurate
results, and the specific reasons they are not employed; any
training or management practices in place which impart knowledge
to relevant personnel regarding the dangers posed by a release
of an extraordinarily hazardous substance and the training provided
to prepare them for the safe operation of the facilityand for
unanticipated occurrences; any other preventive maintenance
measure or on-site emergency response capability or other internal
mechanism developed to safeguard against the occurrence of an
accidental release of an extraordinarily hazardous substance
or any other aspect or component of the facility deemed relevant
by the department. The department may, by regulation or on a
case-by-case basis, limit the scope or detail of the work plan
and the priority or frequency of review of any facility or facility
operation or component thereof where it determines, in writing,
that the action does not remove or compromise the protection
required for the public interest, and enables the department
to allocate its resources more efficiently and effectively.

L.
1985, c. 403, s. 6, eff. Jan. 8, 1986.

13:1K-25.
Accident risk assessment

The
owner or operator of every facility registered with the department
pursuant to section 4 of this act shall submit those operations
in the facility concerned with the generation, storage, handling
or safeguarding of any extraordinarily hazardous substance to
an Extraordinarily Hazardous Substance Accident Risk Assessment,
except as provided for in section 5 with respect to facilities
with an established risk management program. The EHSARA shall
be conducted in conformity with the work plan for the facility
developed by the department pursuant to section 6 of this act
by an independent consultant selected by the department from
a list of three candidates submitted by the owner of the subject
facility or, at the option of the department, by the department
or by an independent consultant contracted for directly by the
department; except that the department, with respect to the
former option, may request the owner of the subject facility
to provide three additional candidate consultants if it finds
all three originally submitted by the facility owner unacceptable.

The
owner of the subject facility shall be assessed a fee established
in accordance with a schedule, established as a regulation by
the department, which reflects all the costs of the risk assessment
of that facility conducted by, or on behalf of, the department.

L.
1985, c. 403, s. 7, eff. Jan. 8, 1986.

13:1K-26.
Extraordinarily hazardous substance risk reduction plan

a.
Upon review of the Extraordinarily Hazardous Substance Accident
Risk Assessment for each facility, the department shall, if
appropriate, order the owner or operator of the facility to
undertake an extraordinarily hazardous substance risk reduction
plan. The order shall identify the risk or risks which must,
within the limits of practicability and feasibility, be abated
and a reasonable timetable for implementation of the plan. The
department shall, by regulation, establish criteria or quantitative
standards for determining risk, which criteria and standards
shall reflect, among other factors, the size of the potentially
exposed population and the gravity of consequences. The commissioner
may order those operations posing the identified risk or risks
that have not been abated on schedule to cease until the risk
reduction plan has been implemented.

b.
The owner of a facility who is aggrieved by an order issued
pursuant to subsection a. of this section may petition the commissioner
for a review of the matter, pursuant to which he shall provide
the commissioner with all data and documents which he believes
demonstrate that the order is unwarranted. If the commissioner,
after review, affirms the initial order, he shall, at the request
of the aggrieved owner, transmit all relevant materials and
documents on the matter to the Office of Administrative Law,
which shall conduct a hearing on the order pursuant to the provisions
of P.L. 1978, c. 67 (C. 52:14F-1 et seq.). This hearing shall
be an adjudicatory proceeding, and shall be conducted as a contested
case pursuant to the "Administrative Procedure Act,"; P.L. 1968,
c. 410 (C. 52:14B-1 et seq.). The department and the aggrieved
owner of the facility shall be deemed parties in interest in
the proceeding. Intervention in this hearing by any other person
shall be as provided in the "Administrative Procedure Act."
After review of the record of the adjudicatory proceeding and
the recommendation of the administrative law judge, the commissioner
shall affirm or modify his order. The decision of the commissioner
shall constitute final agency action on the matter, and shall
be subject only to judicial review as provided in the Rules
of Court. During the pendency of the review and the hearing,
the timetable for compliance with the order giving rise to the
proceeding shall be suspended.

L.
1985, c. 403, s. 8, eff. Jan. 8, 1986.

13:1K-27.
Verification of compliance; records

a.
The department has the right to enter any facility at any time
in order to verify compliance with the provisions of this act
and the quality of all work performed pursuant to this act except
that facility owners or operators shall be under no obligation
to employ any personnel solely to assure access to the facility
by the department when this access would otherwise be impossible.

b.
The department shall develop and establish, pursuant to regulation,
and enforce a system of recordkeeping, which system shall require
the owner or operator of each facility registered pursuant to
section 4 of this act to report to the department on all risk
assessment and risk reduction efforts undertaken pursuant to
this act, all ongoing maintenance measures taken, all unanticipated
and unusual events, and any other information the department
deems appropriate, and which shall be so designed as to prevent
the destruction or alteration of information and data contained
in those records.

These
regulations shall also establish strict penalties, or other
sanctions, to be assessed against any party guilty of destroying
or tampering with any records required to be kept pursuant to
this act.

L.
1985, c. 403, s. 9, eff. Jan. 8, 1986.

13:1K-28.
Insurance carriers; release of information

a.
The department may institute an administrative procedure to
determine whether an owner of a facility which generates, stores,
or handles any extraordinarily hazardous substances should be
required to authorize the insurance carrier or carriers which
underwrite environmental liability or workers' compensation
insurance for that facility to release to the department information
relevant to the risks posed by the facility's management of
the substance or substances. If so authorized, the insurance
carrier or carriers shall release the information within the
period of time established by the department, but in no case
less than two weeks.

b.
An insurance carrier or its representative shall not be held
liable in a civil proceeding for any statement made or action
taken voluntarily or in response to an authorization or request
from the client facility pursuant to this section unless actual
malice on the part of the insurer or its representative is present.
This immunity shall extend to protect an insurance carrier or
its representative from being held liable to any party who sustains
any loss or injury as a direct or consequential result of the
carrier's or its representative's compliance, noncompliance,
or attempt to comply with this act.

c.
The department is authorized to disclose information obtained
from an insurance carrier or its representative pursuant to
this section only to its own employees or agents to assist in
enforcing the provisions of this act, or for use in a civil
or criminal proceeding, if so ordered by a court.

d.
A person who, as required by this section, knowingly and willfully
refuses to release information required under this act, or fails
to hold information received under this act in confidence, is
liable for a penalty not to exceed $5,000.00, to be collected
and enforced in a summary manner under "the penalty enforcement
law" (N.J.S. 2A:58-1 et seq.). The proceedings may be brought
by the department or by a person or an insurer injured by a
failure to keep the information confidential. If a money judgment
is rendered against the defendant, it shall be paid to the plaintiff.
A reasonable and good faith effort to comply with the provisions
of this section shall be a defense to an alleged violation of
this section.

L.
1985, c. 403, s. 10, eff. Jan. 8, 1986.

13:1K-29.
Regulations governing confidential information

a.
The department shall, pursuant to regulation, adopt principles,
guidelines, and procedures governing the internal management
of confidential information supplied to the department pursuant
to this act. The regulations shall provide that information
obtained pursuant to this act shall be disclosed only to its
employees or agents to assist in enforcing the provisions of
this act, or for use in a civil or criminal proceeding, if so
ordered by a court, and shall include, but not be limited to
requirements: (1) that all confidential information supplied
pursuant to this act be labeled as such by the facility owner;
(2) that receipt of such labeled information be acknowledged
in writing by an authorized employee of the department; (3)
that the department establish a review procedure by which only
specifically designated personnel be authorized access to such
information and then only on a "need-to-know" basis; and (4)
that the department establish secure areas for the express purpose
of storage of such confidential information.

b.
The owner of a facility who alleges that certain information
required to be disclosed pursuant to this act contains or relates
to a trade secret or constitutes security information which,
notwithstanding the management procedures for such information
adopted by the department pursuant to subsection a. of this
section, must be kept privileged so as not to competitively
disadvantage the facility, or compromise the security of the
facility or its operations, shall petition the commissioner
for the right to withhold the information. Upon receipt of the
petition, the commissioner shall review the matter. If the commissioner,
in his discretion, denies the petition, he shall, at the request
of the facility owner, transmit all relevant information to
the Office of Administrative Law, which shall conduct a hearing
on the claim pursuant to the provisions of P.L. 1978, c. 67
(C. 52:14F-1 et seq.). At the hearing, the petitioner shall
have the burden to show that the trade secret or security risk
claim is valid. This hearing shall be an adjudicatory proceeding,
and shall be conducted as a contested case pursuant to the "Administrative
Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.).

L.
1985, c. 403, s. 11, eff. Jan. 8, 1986.

13:1K-30.
Violations; penalties

a.
If any person violates any of the provisions of sections 4 through
8 of this act or any rule, regulation or order promulgated or
issued pursuant thereto, the department may institute a civil
action in a court of competent jurisdiction for injunctive or
any other appropriate relief to prohibit and prevent this violation
and the court may proceed in the action in a summary manner.

b.
Any person who violates the provisions of sections 4 through
8 of this act or any rule, regulation or order promulgated pursuant
thereto is liable to a civil administrative penalty of not more
than $10,000.00 for the first offense, not more than $20,000.00
for the second offense, and up to $50,000.00 for the third and
each subsequent offense. If the violation is of a continuing
nature, each day during which it continues constitutes an additional,
separate and distinct offense. No civil administrative penalty
shall be levied except subsequent to the notification of the
violator by certified mail or personal service. The notice shall
include a reference to the section of the statute, regulation,
order or permit condition violated; a concise statement of the
facts alleged to constitute the violation; a statement of the
amount of the civil penalties to be imposed; and a statement
of the violator's right to a hearing. The violator shall have
20 days from receipt of the notice within which to deliver to
the commissioner a written request for a hearing. Subsequent
to the hearing and upon a finding that a violation has occurred,
the commissioner may issue a final order after assessing the
amount of the fine specified in the notice. If no hearing is
requested, the notice shall become a final order upon the expiration
of the 20-day period. Payment of the penalty is due when a final
order is issued or when the notice becomes a final order. The
authority to levy a civil administrative penalty is in addition
to all other enforcement provisions in this act, and the payment
of a civil administrative penalty shall not be deemed to affect
the availability of any other enforcement provision in connection
with the violation for which the penalty is levied.

c.
The department is authorized and empowered to compromise and
settle any claim for a penalty under this section in such amount
in the discretion of the department as may appear appropriate
and equitable under all of the circumstances, including the
posting of a performance bond by the violator.

d.
Any person who violates any of the provisions of sections 4
through 8 of this act, or any rule, regulation, or order promulgated
or issued pursuant thereto, or an administrative order issued
pursuant to subsection b. of this section or a court order issued
pursuant to subsection a. of this section or who fails to pay
a civil administrative penalty in full pursuant to subsection
b. of this section is subject, upon order of the court, to a
civil penalty not to exceed $10,000.00 per day of the violation,
and each day's continuance of the violation constitutes a separate
and distinct violation. Any penalty imposed under this subsection
may be recovered with costs in a summary proceeding pursuant
to "the penalty enforcement law" (N.J.S. 2A:58-1 et seq.). The
Superior Court shall have jurisdiction to enforce "the penalty
enforcement law."

L. 1985,
c. 403, s. 12, eff. Jan. 8, 1986.

13:1K-31.
Fees

The
department is authorized to charge and collect fees from facility
owners registered pursuant to section 4 of this act, in accordance
with a schedule adopted as a rule or regulation, which schedule
shall reflect the costs to the department of reviewing individual
facilities while enabling the department to continue to administer
the program on a self-supporting basis.

The
department shall make every effort to involve hazardous materials
advisory councils, where they exist; local government officials,
and other pertinent entities in explaining actions taken in
regard to facilities in their areas. Local ordinances which
are inconsistent with, in conflict with, or more restrictive
than the provisions of this act must be approved by the department
before adoption.